Suchergebnisse

1.-This overview presents the most significant decisions on restrictive practices from early 2015 to early 2016. It does not therefore claim to be exhaustive Note 1 and is limited to purely internal litigation, without addressing disputes arising in an international context which is otherwise dealt with. Note 2 In the light of these clarifications, it should be noted as a general observation that, in accordance with previous years, the dispute is concentrated on two provisions of Note 3, penalising respectively the significant imbalance (2) and the abrupt termination of established commercial relations (3). However, it is worth mentioning resale at a loss which, if addressed in a single decision, is the subject of important clarification on a matter discussed (1). 1. Resale at a loss 2.-Article L. 442-2 of the Commercial Code penalising resale at a loss Note 4 is now challenged on the basis of the Unfair Commercial Practices Directive of 11 May 2005. The article condemns that practice in all circumstances and not only where it is shown to be unfair, whereas the directive precludes a national provision which generally prohibits sale at a loss if at least that national provision is intended to protect consumers Note 5. In that regard, the Cour d'appel de Douai Note 6 considered that Article L. 442-2 of the Commercial Code was in fact compatible with European law, relying on three considerations, none of which appears to be fully convincing Note 7. Firstly, the location of the text, located in the Commercial Code and not in the Consumer Code, but the argument is probably too formal. Next, its content and, in particular, the reference to the precise arrangements for determining the actual purchase price, but the argument also appears weak. Last but not least, its spirit could be said; however, if the approach is more judicious, it is nevertheless insufficient, since it is not sufficient to note, which is not doubtful, that the text first protects traders, but it must also be established that it is intended to ...

Selective distribution consists of reserving exclusive supply of its products to distributors meeting qualitative, and possibly quantitative, criteria. Once the criteria have been validated, the question arises as to how the selection procedure is to be carried out. The subject requires a two-pronged approach of competition law and contract law, which translates into somewhat reversed principles: whereas under antitrust law, refusal to select a distributor who meets the criteria or the choice of a distributor which does not meet them is a priori punishable, unless it is exempted; in contract law, it is lawful as a matter of principle, unless there are special circumstances. 1.-selective distribution consists, for a network promoter, in reserving exclusive supply of its products to distributors meeting qualitative and possibly quantitative criteria. 2.-A first, classic question, is the validity, under competition law, of the selection criteria used for the organisation of distribution, in so far as those criteria, by virtue of their exclusionary effect, are liable to distort competition Note 1. Once their validity has been established, a second question, which will be of interest only to us, is the procedure for selection, which may arise in connection with a first application or an application for renewal. Whether the promoter is obliged to select all those who meet the criteria, the question arises only if criteria of a purely qualitative nature Note 2 are met; and, symmetrically, the obligation to refuse a person who does not comply with them. In this respect, recent case law reflects for some questionable developments in favour of greater freedom for promoters. 3.-In fact, the assessment of the selection procedures is delicate because it implements a number of principles which must be reconciled. On the one hand, the freedom of trade and industry and the freedom of contract justifying the freedom for the promoter to organise his network and choose his co-contractor; on the other hand, the prohibition of ...